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Last month, the Obama administration issued important guidance to colleges and universities on how to increase racial diversity on campuses, explaining ways to navigate the narrow legal channel charted by the Supreme Court. The benefits of diversity, the Department of Education said, contribute to “the educational, economic and civic life of this nation.” The administration’s support for such efforts stands in stark contrast to the policy of the George W. Bush administration to discourage them. That difference has played out between the political parties for decades, as it will in this presidential election.

Race-conscious programs in education — affirmative action in college admissions and voluntary integration of public schools — have been embattled for more than 40 years. Since the 1970s, the Supreme Court has restricted the approaches available to remedy racial disparities, but has left room for institutions to consider race in achieving certain broader aims.

The war has not ended, however, and three notable lawsuits around the country show the continuing controversy. In March, the United States Court of Appeals for the Sixth Circuit will reconsider Michigan’s ban on affirmative action in public university admissions, which a three-judge panel of the court struck down last summer. By prohibiting race-conscious admissions under the Michigan Constitution, the court said, the ban “reorders the political process in Michigan to place special burdens on minority interests.”

In the Fifth Circuit, a three-judge panel a year ago upheld the use of race as a factor in admissions at the University of Texas at Austin. Four-fifths of students there are admitted as graduates in the top 10 percent of their high school classes. But one-fifth are admitted based on individual assessments, including race as a factor, and this program is being challenged. The university is waiting to hear whether the Supreme Court will review that decision.

In the Ninth Circuit next month, a three-judge panel will hear an appeal from a district court decision to dismiss a challenge to California’s Proposition 209, which outlawed race-conscious admissions in 1996.

Any or all of these cases could end up before the Supreme Court, on which four conservatives have made clear that they would make illegal even narrowly tailored diversity programs. Chief Justice John Roberts Jr. spoke for himself and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. in 2007 when he wrote in an opinion, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Justice Anthony Kennedy, while no fan of affirmative action, has in past decisions supported some use of race in certain situations. The question is whether he will move further to the right and reject those uses as well.

Leaders of universities, corporations and other institutions fear that the conservative majority will overrule Grutter v. Bollinger, the 2003 case that upheld the right of a public law school to consider race in admissions to achieve the benefits of a diverse student body. In endorsing that educational need, Justice Sandra Day O’Connor, writing for the court’s majority, noted that perhaps in 25 years race-conscious policies would no longer be needed.

This country is still very far from that goal. The push by Republican politicians and conservative justices to eliminate efforts to ensure diversity on campuses are squarely at odds with America’s racial history. With the court’s makeup likely to change in the next four years, the presidential election could determine how long such crucial efforts will last. Source: New Your Times. Editorial.

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Recent nominations by the President and Prime Minister as well as shortlists by selection panels for various constitutional and statutory bodies have raised a variety of concerns, including alleged violation of the constitution for overlooking candidates ranked at the top of lists.

Accusations of ethnic profiling have also emerged. It has been suggested that this has been necessitated by the need to ensure constitutionally mandated diversity and inclusion.

In this piece, I address the constitutional and theoretical arguments relating to affirmative action and inclusion. One of the central features of our constitution is the imposition of duties on the state to address the legacy of exclusion by taking positive corrective measures.

This duty is based on the recognition that sections of our society – women, ethnic minorities, the poor and some regions – have suffered marginalisation in the past due to a combination of factors that include exclusionary governmental policies and practices.

This state obligation to take positive steps – commonly known as affirmative action – is found in the article 27(6) of the constitution. This provision requires measures to be taken ‘to redress any disadvantage suffered by individuals or groups because of past discrimination.’

There are other provisions that demand diversity in the composition of the arms of government and state institutions. Of relevance to recent events, article 13(2) (d) requires the President ‘to promote respect for the diversity of the people and communities of Kenya’.

The constitution also imposes quotas in some areas requiring for instance at least 1/3 representation of either gender in all appointive and elective positions and five per cent representation for persons with disabilities. What does taking positive measures mean, and would such measures be constitutional especially when they violate the rights of others?

With respect to appointments, affirmative action would generally have the effect that some criterion other than optimal competence is the decisive factor for selection.

In other words, the most competent candidate(s) at the top of the list are skipped in favour of a candidate possessing reasonable competence. Are the rights of those skipped violated? Yes. Every affirmative action or pro-diversity measure violates the rights of others by discriminating on grounds of ethnicity or ‘ability’.

It is the idea that the most competent individuals are often not selected that makes affirmative action a painful, problematic and much reviled the world over.

In my view, the most relevant question then is whether affirmative action or ‘diversity’ measures have to meet certain conditions in order to be regarded as constitutional, and thus legitimate.

Article 24 of the constitution acts as a shield for governmental actors accused of discrimination in these circumstances. Diversity measures have to be sanctioned by law. There has to be a demonstration that they are designed to meet a legitimate governmental objective. They have to be proportional, in other words, they should not be of the type where a hammer is deployed to kill a fly.

Although article 24 does not expressly include this element, they should have a sunset clause. Because affirmative action measures are discriminatory – sometimes called reverse discrimination – they derive their force of legitimacy not only from the law but also from the recognition that they have to be time bound. For instance, the equalisation fund that will be used to remedy economic marginalisaton of certain regions and groups has a constitutional lifespan of 20 years, subject to renewal by Parliament.

Reserving seats for such groups in perpetuity reinforces stereotypes while freezing social and cultural advances in society. More importantly, it will raise difficult constitutional concerns in future.

Unlike the US and South Africa where the debate largely revolved around race, in Kenya ethnicity is at the elephant in the room. What matters is how appointing authorities handle particular nominations. There is need for public education too. Affirmative action is however necessary as a measure that is central to the project of rebuilding a more inclusive and caring nation.

The writer, Godfrey Musila is an advocate, consultant and director at the African Centre for International Legal and Policy Research. Source: allAfrica.com.

Sunday’s New York Times featured an important article by Supreme Court reporter Adam Liptak, entitled, “College Diversity Nears Its Last Stand.” In the piece, Liptak notes that experts think the U.S. Supreme Court will probably accept a challenge to racial affirmative action at the University of Texas at Austin. The article furthermore suggests that if the Court takes the case, there may be five votes to strike down racial preferences bringing about “the end of affirmative action at public universities.”

In framing the issue, the article quotes supporters of racial preferences and diversity, as well as those, such as Peter Wood of the National Association of Scholars and Peter H. Schuck of Yale Law School, who say racial diversity in education is overrated. The article leaves readers with the impression that the Court essentially has two options: it could strike down the use of race and see racial diversity plummet or it could affirm the use or race, as the Court did in the 2003 Grutter v. Bollinger case, and preserve the status quo. But polls have long suggested that Americans are looking for a third option—they value racial and ethnic diversity in higher education, but don’t want applicants casually judged by skin color—and the Supreme Court may very well try to thread that needle.

This third path, which validates racial diversity as a compelling interest in higher education, yet seeks to limit the explicit use of racial preference to a “last resort,” may well be where Justice Anthony Kennedy, the swing vote on the Supreme Court, wants to take the country. In a 5-4 2007 decision involving the use of race in student assignment at the K-12 level, Justice Kennedy said diversity is a compelling interest but struck down a plan which explicitly favored or disfavored individual students based on their race, suggesting alternative routes to achieving diversity were available.

In the possible upcoming Supreme Court challenge, the University of Texas at Austin employs what Liptak calls an “idiosyncratic” admissions system. Since the 1990s, UT has admitted students who are in the top 10 percent of their high school class and has provided preferences to socioeconomically disadvantaged students of all races. But following the 2003 Grutter decision, UT reintroduced the use of race in admissions. This hybrid system is indeed idiosyncratic; most universities don’t try to find race-neutral ways of achieving racial diversity, instead jumping straight to using race. But that is precisely why opponents of preference chose to highlight UT Austin. They argue that race-neutral methods produced a class with substantial racial diversity (16.9 percent Hispanic and 4.5 percent black) in 2004, prior to the reinstatement of racial preferences.

Could UT’s success be replicated elsewhere? According to 2004 research published by the Century Foundation, class-based affirmative action would produce three-fourths as much racial diversity as using race at the most selective 146 colleges and universities. While university admissions based on grades and test scores would yield student bodies that have a 4-percent combined black and Latino admissions, class-based preferences would boost that to 10 percent black and Latino, somewhat short of the current 12-percent representation. Socioeconomic factors not included in the Century Foundation study—such as wealth—could boost racial diversity even further, as black income is 60 percent of white income, but black net worth is just 5 percent of white net worth.

Some will suggest this indirect approach to racial diversity is too “cute.” If the goal is racial diversity, why not be honest, and use race per se? But this criticism ignores the insight that both public opinion and Supreme Court doctrine provide: Judging individuals by race is morally repugnant, something to be reserved only for cases when it’s absolutely necessary. Moreover, there are important moral reasons to want to promote socioeconomic diversity and mobility independent of race. Today, research finds, universities give substantial weight to race but essentially no preference for socioeconomic status in admissions. A ruling by the Supreme Court curtailing the use of race could reverse this equation, encouraging universities to place great emphasis on socioeconomic status, while little or no emphasis on race. College diversity, in this case, wouldn’t be taking its “last stand.” It would be taking a new and different form that at long last addresses the nation’s profound and growing chasm between rich and poor.